R v Smith and Turner

[1994] SASC 4874

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Evidence - admissions - During the joint trial for murder of two alleged co-offenders, objection was taken to the admissibility of tape recorded conversations with one of the accused obtained in a clandestine fashion by a third person - held that although the recordings did not constitute a breach of the Listening Devices Act 1972, they should be rejected in the exercise of the Court's discretion as unfair, no caution having been given and the circumstances being such that a direct approach by police who wished to interrogate the co-offender concerned would have necessitated the giving of a caution. Listening Devices Act 1972 553, 4 and 7. R v Webb and Hay (1992) 59 SASR 563; Webb and Anor v The Queen (1994) 68 ALJR 582; Pfennig (No l) (1992) 57 SASR 507; Musico (1991) 55 SASR 274 and R v Dolan (1992) 58 SASR 501, considered.

Evidence - admissibility of statements made during the course of joint criminal enterprise - Evidence of conversations by one of two co-accused with a third party in the absence of the other held to be admissible as acts or words done or said in furtherance of a common purpose which existed between them. Tripodi (1961) 104 CLR 1; Ahern (1988) 165 CLR 87 and Corak and Anor
(1982) 30 SASR 404, considered.

Criminal law and procedure - separate trials - Discussion of the principles applicable to applications for separate trials of alleged co-offenders, and separately as to an application by a defendant charged with assisting one of the alleged co-offenders to escape apprehension. Criminal Law Consolidation Act 1935s241(1) (b). R v Hogan and Ors (1990) 159 LSJS 297; Webb and Anor v R
(1994) 68 ALJR 582; Assim (1966) 2 QB 249; Dawson (1961) VR 773 and Williams
(1932) 32 SR(NSW) 504, considered.

HRNG ADELAIDE, 22 August, 2, 30 September, 28, 31 October, 14 November 1994 #DATE 1:12:1994

Counsel for Crown:             Mr D Whittle with him
   Mr I White

Solicitors for Crown:            DPP (SA)

Counsel for accused Smith:     Mr W Braithwaite with him
   Mr G Black

Solicitors for accused Smith:    Elston And Gilchrist

Counsel for accused Turner:     Ms A Vanstone QC with her
   Mr E Mcgee

Solicitors for accused Turner: Mcgee and Associates

Counsel for accused Altintas:    Mr J A Richards

Solicitors for accused Altintas: Belperio Clark

ORDER
Applications dismissed.

JUDGE1 PERRY J These reasons are published during the course of the trial to explain rulings which I made before the trial commenced as to applications by two of the accused for a separate trial and as to the admissibility of certain items of evidence.

2. The accused Mark Raymond Smith and Colin Frederick Turner are jointly charged with the murder of Cosimo John Castelluzzo on about 31 December 1992 at Edithburgh.

3. In a second count on the same information the accused Laura Altintas is charged with assisting the accused Smith to escape apprehension contrary to s.241(1)(b) of the Criminal Law Consolidation Act 1935.

4. It is the case for the prosecution that Smith and Turner drowned Castelluzzo in the sea off the coast of Yorke Peninsula.

5. Briefly, the circumstances as alleged by the Crown leading up to the drowning of Castelluzzo are as follows.

6. In the early hours of the morning of Thursday 31 December 1992, after going to the city with a friend, Castelluzzo disappeared. The last known sighting of him was in the vicinity of Hindley Street.

7. Turner owned a property at Sunbury near Yorketown, on which there was an old farmhouse. Smith is Turner's step-son. In the afternoon of 31 December 1992, Turner and a man named Roberts, who shared Turner's house with him in Adelaide and who owned a boat, left together in Roberts' car, towing Roberts' boat. Their destination was the farm property, which they intended to use as a base for a fishing trip. Neither of them expected anyone else to be at the property.

8. When they arrived they found Smith at the house. He had a pistol in his belt. After he had entered the house, Roberts saw in the bedroom a male person, on the Crown case Castelluzzo, lying on the floor, face down, wearing only a pair of underpants. He was gagged with masking tape, and his hands and feet were handcuffed and tied together behind his back.

9. Later that night, Turner and Smith formulated a plan to get rid of the man by using Roberts' boat. Turner and Smith carried the man into the boat. Roberts then drove it to Edithburgh where it was launched from the boat ramp shortly before midnight. Roberts was told by Turner to drive the boat out some distance from the shore towards Troubridge Island. After travelling for about 15 minutes and having reached a position some distance off-shore, Turner told Roberts to stop. Smith and Turner are alleged then to have thrown Castelluzzo, while he was still alive, over the side of the boat. He was weighed down with old steel cogs and wheels.

10. Roberts brought the boat back to the ramp and the party returned to the farmhouse. On their arrival, Smith drove off in Roberts' car. He returned at about 7 or 8 am. Very shortly afterwards, a white Holden Commodore pulled up, driven by the accused Altintas. Smith and Altintas then left in that car.

11. Later in the morning, that is, the morning of 1 January 1993, two other men who had previously arranged to join the fishing trip, came to the farm. After two more days fishing, they all returned to Adelaide.

12. Late in February 1993, Roberts first made contact with the police. On 7 March 1993, the three accused were arrested and questioned. There were no admissions.

13. Despite searches at sea, Castelluzzo's body has never been found.

14. Smith and Altintas have given notice to the prosecution of an alibi defence. During the course of the pre-trial arguments, counsel for Turner declined to indicate what his defence would be.

OBJECTION BY TURNER AS TO ADMISSIBILITY OF EVIDENCE AGAINST HIM
15. On 20 February 1993, Roberts went to the Plympton Police Station and spoke with a police officer there. On 22 February, Superintendent Litster went to Roberts' home and spoke with him and his parents. He arranged for Roberts to be interviewed. A very lengthy interview took place on 23 February between Detective Sergeant Pippos and Roberts. On 24 February, the matter was declared a major crime.

16. At the instigation of Detective Sergeant Pippos, Roberts subsequently tape recorded two conversations which he had with Turner, surreptitiously using equipment supplied by the police. The conversations took place on 25 February and 27 February 1993.

17. The objection which Turner takes is to the admissibility of evidence from Roberts of the terms of those conversations.

18. No warrant was issued under the Listening Devices Act 1972 authorising the use of the tape recorder by Roberts. Pippos believed that no such warrant was required, having regard to conversations which he had with Sergeant Kossatz of the Police Intelligence Technical Section before setting up the exercise. I heard evidence on the voir dire from Litster, Pippos and Kossatz.

19. Both tape recorded conversations took place at the house shared by Roberts and Turner. On both occasions, Roberts initiated conversations with a view to securing incriminating admissions from Turner. Unfortunately, the quality of the recording was such that a number of words are inaudible or cannot easily be understood. Attempts were made to produce transcripts. Much time was spent before and during the first trial (there was an earlier mis-trial) in an effort to secure agreement with counsel as to a transcript of the conversations. A transcript was produced which had various disputed phrases in brackets. In some instances alternatives were given. Just how the jury was to be invited to deal with that is not known, as the first trial was aborted before that stage was reached.

20. For the purposes of the present trial, another transcript was prepared in which no attempt was made to set out anything in the areas where the tape was unclear. In those areas, there are simply gaps in the transcript.

21. As a result of that process, not surprisingly there is some argument as to precisely what was being conveyed in various critical passages.

22. An example is the first page of the transcript of the conversation which took place on 25 February 1993. This reads in part as follows:
    "Roberts said: Now tell me, what the bloody hell's going on
    (?) said: There's the tea that .... bought over I had some
    curry and left some in the pot for you
    (?) said: .... already had tea
    Turner said: I'm going round to Kay's
    R said: You got tea at Kay's
    T said: No I'll go over there ...
    R said: What
    T said: Cos if you say you've ever been there, .... see
    that guy .... he must have been there before we put the
    boat out
    R said: Right
    ...
    T said: He must have been there when we came back
    R said: When we came back
    T said: Yeah
    R said: But he was there when we pulled in too wasn't he
    (?) said: ...
    R said: A
    (?) said: Are you sure he didn't see Mark in the boat
    T said: Where the hell can I find a third person, where am
    I gonna find a third person .... wireless. Must have been
    the wireless.
    R said: And
    T said: .... the third person we'll say when we come back
    some cunt give us a fuckin hand, some cunt give us a hand,
    give him a lift up the road, then dropping him off up the
    road
    T said: By the pub
    T said: Alright
    R said: Well it's all you can say isn't it
    T said: Say that some cunt gave us a hand"

23. There is no doubt that in that passage Turner expresses concern that on the night of the alleged offence there may have been someone at the boat ramp, both on the occasion when the boat put out and when it returned, who may have seen the accused Smith ("Mark").

24. In the second conversation, on 27 February 1993, they discussed their fears that they might be in danger from others if word of the alleged offence was to get out. For example, in the transcript tendered there appears the following passage:
    "T said: I just told him I want you to do me a big favour,
    I might have to fuck off for a while don't ask any
    questions
    R said: Your saying if anything transpires we can get
    killed
    T said: Listen, what I'm saying Dave and this is what I'm
    saying
    R said: We're not dealing with the Mafia for Christ's sake
    T said: What I'm fuckin saying is we could fucking go to
    gaol for life right all this would be fucked up if we start
    yakking our mouths off we could be fuckin killed yeh, .....
    the Mafia ..... second best to the Mafia
    R said: Second best to the fucking Mafia
    T said: Look that's what I'm saying you know. Fucking
    Jesus.
    R said: Fucking hell, how the hell did we get fuckin
    involved in the first place
    T said: There's not good worrying about it, just deny we
    were ever there, you deny that until you get a lawyer and
    the lawyer you gotta get is a bloke called Douglas Wardle."

25. The grounds argued by Ms Vanstone, of counsel for Turner, in support of his objection to the admissibility of the tape recorded conversations is that they were unlawfully made in that they were made in contravention of the Listening Devices Act 1972, and that this renders them inadmissible as a matter of law, or alternatively, should lead to their exclusion as a matter of discretion. The other ground was that in the absence of a caution to Turner, it would be unfair to use the tape recorded evidence against him.

26. It is common ground that a tape recorder is a listening device within the meaning of the Listening Devices Act.

27. S.4 of the Act provides:
    "Except as is provided in this Act a person shall not
    intentionally use any listening device to overhear, record,
    monitor or listen to any private conversation, whether or
    not he is a party thereto, without the consent, express or
    implied, of the parties to that conversation.
    Penalty: Division 5 fine or division 5 imprisonment or both."

28. S.7 provides:
    "(1) Section 4 of this Act does not apply to or in relation
    to the use of a listening device by a person (including a
    person to whom a warrant is issued under section 6) where
    that listening device is used-
    (a) to overhear, record, monitor or listen to any private
    conversation to which that person is a party;
    and
    (b) in the course of duty of that person, in the public
    interest or for the protection of the lawful interests of
    that person.
    (2) A person referred to in subsection (1) of this section
    shall not otherwise than in the course of his duty, in the
    public interest or for the protection of his lawful
    interests, communicate or publish any information or
    material derived from the use of a listening device under
    that subsection.
    Penalty; Division 5 fine or division 5 imprisonment or
    both."

29. In s.3 of the Act "private conversation" is defined to mean -
    "any conversation carried on in circumstances that may
    reasonably be taken to indicate that any party to the
    conversation desires it to be confined to the parties to
    the conversation."

30. Clearly, Turner intended the conversations to be confined to Roberts and himself. These were, therefore, "private conversations" within the meaning of the Act.

31. However, in my opinion there was no breach of the Act. It seems to me that s.7(1)(b) is of application. Although the recording of the conversations was not "in the course of duty" of Roberts, they resulted from a use of a listening device "in the public interest" within the meaning of that sub-section. It was in the public interest that evidence be obtained of the commission of a serious offence by Turner and Smith, if such an offence had been committed. Furthermore, the communication or publication of the record of the conversation to the police and, if it was held to be otherwise admissible, to the Court during the course of the trial, is likewise "in the public interest" within the meaning of s.7(2).

32. Mr Whittle of counsel for the DPP argued that the recording of the conversation was for the "protection of the lawful interests" of Roberts within the meaning of s.7(1)(b). No doubt it was in the interests of Roberts in a general sense to assist the criminal investigation to obtain evidence against Turner and Smith, and to do so in circumstances which might secure for him immunity from prosecution. I doubt, however, whether the circumstances in question identify the use of the listening device "for the protection of the lawful interests" of Roberts in the sense in which those words are used in the sub-section. However, for the reasons which I have given, it was a use "in the public interest", and Ms Vanstone's argument based on the Listening Devices Act fails.

33. The question of the lack of a caution involves different considerations. This aspect of the argument proceeded along the line that an investigating police officer would have been obliged to administer a caution if he or she had questioned Turner at the time of the recorded conversations with Roberts. The absence of a caution would in such circumstances have led to the exclusion from evidence of any such questioning. Where the investigating police officers have used an intermediary to elicit incriminating admissions, without a caution having been administered, evidence of the admissions should likewise be excluded.

34. In R v Webb and Hay (1992) 59 SASR 563, the Full Court considered the circumstances in which a warning should be given by investigating police officers. In the course of his judgment, with which Cox and Matheson JJ agreed, King CJ said (571):
    "The circumstances which oblige an investigating police
    officer to administer a caution, were considered by
Mason CJ in Van der Meer v The Queen (1988) 62 ALJR 656 at
    661. The majority of the court considered that on the
    facts of that case there had been no impropriety with
    respect to the caution on behalf of the police, but there
    is nothing in the judgment of the majority to cast doubt
    upon Mason CJ's discussion of the principles. After
    referring to the requirements of the English Judges' Rules
    for a caution when a police officer has made up his mind to
    charge the suspect with a crime, when a suspect is taken
    into custody or when a suspect is formally charged, his
    Honour said: 'The occurrence of any one of these events may
    be taken as marking the beginning of the accusatory stage
    when the giving of a caution is required: see G.L. Teh,
    "An Examination of the Judges' Rules in Australia" (1972)
46 ALJ 489 at 493. And in one other situation at least the
    obligation to give a caution will arise earlier. For
    example, when the police have sufficient evidence in their
    possession to justify a charge, even if they have not
    decided to charge the suspect: see Devlin, The Criminal
    Prosecution in England (1960), p.29.
    Each of the four events just mentioned is a signal that the
    general inquiry has reached the stage whereby the suspect
    has been identified as the perpetrator of the crime and as
    the guilty party. It follows, therefore, that further
    investigation will almost certainly be directed to the
    obtaining of further evidence to support a prosecution.'

35. Later his Honour said:
    'I do not doubt that in some situations the police, though
    believing a suspect to be guilty of the crime, wish to
    ascertain whether he has an answer to the suggested case
    against him, before making a definite decision to charge
    him. But, recognition of the right to silence and
    considerations of fairness to the suspect demand that, in
    these situations, the police should issue a caution ....'
In R v Dolan (1992) 58 SASR 501, the Full Court, sitting as
    a Court of Criminal Appeal, applied the principles to the
    case of a systematic recorded interrogation of a person
    against whom allegations of a sexual offence had been made
    by an alleged victim. The evidence of the interrogating
    police officer, which was accepted, was that he wished to
    hear the suspect's answer to the allegations before
    deciding whether to arrest and did not make up his mind to
    charge him until he gave certain answers which the police
    officer regarded as unsatisfactory. The court held that
    the caution ought to have been administered at the
    commencement of the interview as the police officer had a
    reasonable suspicion of the guilt of the suspect. In order
    to require the caution to be administered, the reasonable
    suspicion must result from evidence available to the police
    officer implicating the suspect in the crime.
    The circumstances in the present case were quite unlike
    those in Dolan (supra). Here there was no allegation by an
    alleged victim which would justify the laying of a charge
    against the alleged offender."
    (A subsequent appeal to the High Court was argued on other
    grounds. See Webb and Anor v The Queen (1994) 68 ALJR
    582.)

36. In Dolan's case, as Ms Vanstone pointed out during the course of her argument before me, the police took a statement from the victim in which she made a complaint about alleged sexual assaults suffered by her at the hands of the accused. Apparently with nothing more than that statement, the police approached the accused and interviewed him without giving a caution.

37. Here, it does not appear that police investigations had unearthed anything of consequence before Roberts made his long statement implicating Turner and Smith. But in my opinion, armed with that very detailed statement, replete as it was with considerable circumstantial detail, the investigating police had a reasonable suspicion of the guilt of Smith and Turner. True it is that the officer in charge of the major crime squad, Superintendent Litster gave evidence on the voir dire that he did not think it would have been appropriate to effect an arrest of Turner and Smith immediately following the giving of the statement by Roberts. He said (T18):

    "I didn't think there was sufficient there at that stage
    for us to become too confident we were going to go out and
    arrest somebody the next day on just the statement by one
    person. We didn't have a crime scene, there was no
    tangible evidence .... As far as tangible evidence, or
    anything which corroborated that, it was lacking at that
    stage."

38. Pippos gave similar evidence.

39. However, the question whether or not a caution should be administered is to be answered objectively by reference to the evidence in the possession of the police at the time, and the answer to the question whether or not on that evidence there was sufficient to justify a charge.

40. In my opinion, while it was perfectly proper for the police to pursue other inquiries before moving to arrest Turner and Smith, the statement of Roberts which they had obtained provided sufficient evidence to justify a charge. If they had approached Turner or Smith to question them concerning the matter with nothing else in their possession apart from the statement of Roberts, they would have been obliged to administer a caution.

41. In Pfennig (No 1) (1992) 57 SASR 507, the accused indicated to the police that he did not wish to answer questions. The investigating detective then conceived the idea of asking a fellow prisoner to insinuate himself into the accused's confidence at the Remand Centre, and elicit admissions from him. The fruits of that strategy were ruled inadmissible. During the course of his ruling, Cox J observed (514):
    "Ms Vanstone argued that Rose-Royal's overtures involved no
    inducement or threat or illegality; nor is there anything
    improper about one prisoner giving evidence of a
    conversation he had with another. Furthermore, some of the
    accused's alleged statements were volunteered. I do not
    think these considerations do anything to save the
    evidence. The police set a trap for the accused of an
    impermissible kind. Any volunteered statements were
    interspersed with Rose-Royal's questions and suggestions
    and deceptions. It is as though the police, faced with a
    plain refusal to answer, sent in an undercover police
    officer in disguise to interrogate the accused or otherwise
    inveigle him into making admissions. Anything said in
    response to such a stratagem in the circumstances described
    would have to be ruled inadmissible, and the result here
    must be the same.
    The eavesdropping cases, such as R v Mills (1962) 1 WLR
1152 and R v Keeton (1970) 54 Cr App R 267, are
    distinguishable. There the police were simply putting
    themselves in a position to overhear the unguarded
    statements made by a suspect or defendant to someone else."

42. The distinction between admissions elicited by a subterfuge and statements truly volunteered may be illustrated by comparing Pfennig with Musico (1991) 55 SASR 274. In Musico, the evidence of a friend and relative of the accused, whose presence he had requested pursuant to s.79a of the Summary Offences Act 1953, and to whom the accused had volunteered incriminating admissions during the course of a private conversation, was held properly to have been admitted.

43. Here, while it is true that unlike the situation in Pfennig, Turner had not refused to answer questions put by the police, having regard to what Detective Pippos had been told by Roberts, Pippos could not have confidently entertained the belief that Turner would respond to police questioning. Furthermore, unlike the position in Musico, the admissions in question here were elicited by deliberate statements or questions by Roberts, which in one or two instances were, to Roberts' knowledge, false.

44. In those circumstances, particularly having regard to the fact that police interrogation of Turner would necessarily have carried with it an obligation to caution, it seemed to me to be unfair to use the tape recorded evidence against Turner, and it is for that reason that I ruled accordingly.

45. In exercising my discretion, I also took into account the unsatisfactory nature of the quality of the tape recordings.

46. It must be understood that there will be occasions when the taping in a clandestine fashion of conversations between a suspect and another person, whether a friend or family member who has his or her confidence, will be admissible even in the absence of a caution. Different considerations apply, for example, where statements are volunteered and not elicited. Musico is a case in point. Different considerations also apply to situations where the person making the recording is an agent provocateur engaged in a transaction with the suspect which is itself the criminal conduct which becomes the subject of a charge.

47. Furthermore, it must be accepted that even where an investigation has reached the accusatory stage, the absence of a caution does not necessarily mean that evidence will be excluded. Each case depends upon its own facts.

OBJECTION BY SMITH AS TO ADMISSIBILITY OF EVIDENCE AGAINST HIM
48. Mr Braithwaite, counsel for Smith, contended that various passages in the statement of the proposed witness Roberts, although admissible against Turner, were not admissible against Smith.

49. The objection extended to the two tape recorded conversations between Turner and Roberts, but I have already given my reasons for ruling those conversations to be inadmissible.

50. The other evidence objected to is evidence of the various things said between Roberts and Turner in the absence of Smith on the night of the alleged murder, and during the weeks following the murder. It was contended that they represent inadmissible evidence of Smith's bad character and associates, and do not fall within any of the exceptions to the hearsay rule.

51. Statements to which objection is taken and which occurred on the night of the alleged murder include the following:
    (page 10):
    "I said to Colin in a whisper while Mark was out of the
    kitchen, 'do something, tell him to go, fuck off and get
    him out of here' and Colin said, 'I can't because he is my
    son'. Just then Mark came out of the room and closed the
    door."
    (page 12):
    "Inside I asked Colin that this had nothing to do with us
    and to make him go and then Mark checked up on the bloke
    again in the room. While he was doing this I said to Colin
    that we should just get into the car and drive into town
    and leave Mark and the bloke there. Colin said something
    about they will never just let us go."
    (page 13):
    "Colin said to me at one point that 'If I didn't know
    anything you can't tell anyone anything, so for that reason
    don't ask any questions'. He said that if anything got
    found out the type of blokes that were involved would cut
    me up in little pieces."
    (page 17):
    "I was trying to find out what the bloke had done to
    deserve this and Colin said that he didn't even know who
    the person was and also that the people that Mark is
    involved with you would never want to know them because
    they were a lot worse than Mark."

52. Between the time of the alleged murder and the date upon which Roberts went to the police, Roberts speaks of further conversations with Turner. See, for example:
    (page 27):
    "Colin was continually telling me how dangerous these
    people, that is, the friends of Mark Smith, were and that
    if I ever said anything they would kill me. ..... Some of
    his exact words were 'You would never want to know who the
    people were let alone ever wanting to meet them'. He said
    one night, 'Some of the people Mark knew have killed
    people'."
    (page 30):
    "He said to me "You don't know anything and you don't know
    anyone so you can't tell anyone' and then he again went on
    about the blokes Mark was tied up with ..... Colin had
    spoken about it being like a mafia hit."

53. In my opinion, the conversations between Turner and Roberts on the night of the alleged murder come within the category of evidence of acts or words of one of the parties with reference to a crime committed in concert with another in the absence of that other when the acts or words might fairly be regarded as having been done or said in furtherance of a common purpose which existed between them. They are admissible as such.

54. While there is nothing to suggest that Turner was party to any joint enterprise to kill Castelluzzo before he arrived at the farm on the night in question, there was foreshadowed evidence from Roberts to the effect that Turner became a willing participant with Smith in the planning and putting into effect of a joint enterprise to kill Castelluzzo and to dispose of his body.

55. True it is that before such evidence becomes admissible against the absent party, what has been described as "reasonable evidence of the pre-concert" must first be adduced. See Tripodi (1961) 104 CLR 1 per Dixon CJ and Fullagar and Windeyer JJ at 7:
    "When the case for the prosecution is that in the
    commission of the crime a number of men acted in
    preconcert, reasonable evidence of the preconcert must be
    adduced before evidence of acts or words of one of the
    parties in furtherance of the common purpose which
    constitutes or forms an element of the crime becomes
    admissible against the other or others, that is to say of
    course, unless some other ground for admitting the evidence
    exists in the given case."

56. And see further on the same page:
    "It must be remembered that the basal reason for admitting
    the evidence of the acts or words of one against the other
    is that the combination or preconcert to commit the crime
    is considered as implying an authority to each to act or
    speak in furtherance of the common purpose on behalf of the
    others."

57. Tripodi was approved and explained in Ahern (1988) 165 CLR 87. Ahern is authority for the further proposition that it is for the Judge and not the jury finally to determine the question of admissibility. That is to say, the Judge must decide for himself or herself whether there is "reasonable evidence of the preconcert" to provide a basis for the admission of the challenged evidence. Once the Judge rules in favour of the admissibility of the evidence, the evidence must then be considered by the jury, even though the jury may ultimately reach the view that in fact there was no joint enterprise between the author of the statements and the other party against whom the evidence is sought to be admitted.

58. See also Corak and Anor (1982) 30 SASR 404 per King CJ at 406:
    "In cases such as the present case, there must, as I have
    already pointed out, be evidence raising at least a real
    possibility of pre-concert before the challenged evidence
    is admitted. The real possibility of the common design or
    purpose which in appropriate cases is a condition precedent
    to admission of the evidence, may, however, be indicated by
    evidence of acts or statements done or made by the accused
    or in his presence, whether those acts or statements were
    done or made before or after the challenged conversations,
    if they tend to show the existence of a common purpose in
    pursuance of which the conversations under challenge took
    place. Moreover, it is not in all cases necessary that the
    common design precede the statements or actions whose
    admissibility is under challenge. A person by joining a
    criminal venture may make admissible against him the prior
    conversations and actions of the other parties to the joint
    venture which occurred in the course of setting up and
    furthering the joint venture before the accession of the
    first mentioned person, in order to prove against him the
    nature and scope of the joint venture which he had joined."

59. It is clear from the content of the statements by Turner sought to be led from Roberts that the statements were designed to ensure that Roberts co-operated to the extent necessary to enable a joint enterprise to be put into effect, and that he would not jeopardise the joint enterprise by later speaking about it to anyone else.

60. On the Crown case, both Turner and Smith had a common interest in ensuring Roberts' co-operation and silence. Successful carrying out of the joint enterprise would not have been possible without that. The statements alleged to have been made on the night of the alleged offence are, therefore, admissible on that score.

61. The statements made during the weeks following the commission of the alleged offence may arguably fall into a different category. Commonly, the joint enterprise exception to the hearsay rule will apply to acts or statements preceding or accompanying the perpetration of the crime: see Tripodi (supra) at 7: "Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts."

62. However, insofar as the underlying rationale of the exception is one of agency or implied authority, it might be contended that the later conversations between Turner and Roberts were an expression of a concern on the part of the former to ensure Roberts' continued silence, and that in making the statements which he is alleged to have made, he ought properly to be regarded as speaking for both himself and Smith. But the matter was not argued in that way, and indeed, Mr Whittle for the DPP contended only that the later statements were admissible in order to explain why it was that Roberts did not immediately report the matter to the police upon his return to Adelaide.

63. In those circumstance I think it best that, having ruled the later statements admissible, the jury should ultimately be instructed only to use them to counter any possible argument challenging Roberts' veracity by reason of his delay in reporting the matter.

64. It follows that the statements made by Turner in the absence of Smith, both on the night of the alleged murder and subsequently, are admissible against Smith on the bases which I have indicated.

65. I should say that at the time of dictating these reasons, Roberts has already given his evidence in chief. This departs in some respects in matters of detail from the signed statement or proof with respect to which the objections were argued. However, it seems to me that the substance of the objections is unaffected by the differences in detail, and there is, therefore, no reason to reconsider the rulings in the light of the evidence as it has emerged at the trial.

SEPARATE TRIALS
66. The applications for a separate trial were brought by Smith and Altintas. They each applied for an order that their trials be separated from the trial of the charge against Turner.

67. Smith did not seek a separate trial from Altintas, only from the trial of Turner. Smith's application was advanced in an application issued pursuant to Rule 9.01. In the application there is one ground only:
    "1.1 The prosecution case against the accused Turner
    contains evidence which is so prejudicial to the applicant
    that its prejudicial effects are not capable of being dealt
    with by a judicial warning."

68. The application then goes on to give particulars of the proposed evidence upon which the application is founded. I come to deal with that in due course.

69. The position with respect to the application by Altintas is not so clear. Mr Belperio appeared for her at a directions hearing on 2 September 1994 when he said that he had been instructed to support Mr Braithwaite's application on behalf of Smith for a separate trial. When I pressed him to indicate whether or not his client made an application of her own for a separate trial, he indicated that she did, and went on to say that her application was "basically on the same grounds as those argued by Mr Braithwaite". I then asked him whether her application was for a separate trial from Smith as well as from Turner. He said, "The application is that she should have a separate trial altogether", that is, on her own.

70. Subsequently, by an application issued pursuant to Rule 9.01, on 26 September 1994, Altintas applied for an order "that her trial be severed from hearing at the same time as that for the defendant Colin Frederick Turner". Clearly, that was not an application that her trial be severed from Smith, only from Turner. However, ground 1 of the grounds specified in her application is:
    "1. The offence for which Laura Altintas is charged is a
    different offence at law to that applicable to the other
    defendants."

71. Ground 2 is:
    "The case against Laura Altintas is weak and she will
    suffer prejudice by being tried jointly with Turner."

72. Before a further directions hearing heard on 30 September 1994, when I intended to deal with Altintas' application, Mr Richards intimated that he did not have anything further to put in support of her application.

73. Her application for a separate trial falls to be determined against that somewhat unsatisfactory background.

74. Dealing with the application by Smith, there is nothing in the CriminalLaw Consolidation Act which speaks of joinder of accused persons on the one information. S.278 deals with joinder of charges but ss.(2) of that section makes it clear that it is dealing with the joinder of charges against one accused. Justification for the joinder of the accused in this case must be found in the common law "or as it is sometimes said, in the established practice of the court": R v Hogan and Ors (1990) 159 LSJS 297 per Mullighan J at 306.

75. As to Smith's application, it will have been seen from the only ground upon which it is pursued, that there is no attack upon the propriety as a matter of law of his joinder with Turner on the information. His application comes down to the proposition that evidence admissible against Turner is said to be so prejudicial to the trial of the charge against Smith that no judicial warning would be adequate to ensure a fair trial for Smith. "When accused are charged with committing a crime jointly, prima facie there should be a joint trial": Webb and Anor v R (1994) 68 ALJR 582 per Toohey J at 606.

76. See also Holden (1990) 52 A Crim R 32 per Perry J (with whom King CJ agreed) at 44:
    "As to the discretion to order separate trials, the prima
    facie rule is that there should be a joint trial when the
    accused are charged with committing the crime jointly: see
Harbach (1973) 6 SASR 427 at 432, and see also Demirok
(1976) VR 244; Gibb and McKenzie (1983) 2 VR 155; (1982) 7
A Crim R 385; and Glover (1987) 46 SASR 310.

Where the application for a separate trial is put forward
    on the basis of the likely prejudicial effect of out-of-court
    statements of a co-accused, it is for the trial judge
    to balance the effect of the prejudicial statements
    on the minds of the jury against the likely effectiveness
    of the usual warnings, but the prima facie rule is not
    easily displaced: see the remarks of Cox J in Conlon (1982)
30 SASR 176 at 183."

77. I have held the out-of-court statements by Turner to Roberts to be admissible against both accused jointly charged: those which took place on the night of the alleged offence being admissible under the exception to the hearsay rule relating to statements made during the course of a joint enterprise, and the statements made subsequently being admissible, at least to explain the lapse of time before Roberts went to the police.

78. It follows that the evidence as to which concern has been expressed is, under one head or the other, admissible against both Turner and Smith.

79. True it is that if the statements made after the night upon which the alleged offence was committed were to be taken in isolation, it might be suggested that their prejudicial effect outweighs their probative value, at least so far as Smith is concerned. But it seems to me that the earlier statements being admissible upon the footing to which I have referred, there is really no substance in the suggestion that the later statements are likely to have an unduly prejudicial effect.

80. It follows that this case points more strongly than otherwise might be the case towards the desirability of a joint trial of the accused who are jointly charged, in that there is no body of evidence admissible only against one of them, as to which a particular warning confining its use against the other is involved.

81. The application by Smith was, therefore, dismissed.

82. As to the application by Altintas, the first ground is:
    "1. The offence for which Laura Altintas is charged is a
    different offence at law to that applicable to the other
    defendants."

83. As to that ground, the common law principles under which joinder is permitted justify joinder even where different offences are alleged.

84. See Assim (1966) 2 QB 249 per the judgment of the Court of Criminal Appeal at 261:
    "As a general rule it is, of course, no more proper to have
    tried by the same jury several offenders on charges of
    committing individual offences that have nothing to do with
    each other than it is to try before the same jury offences
    committed by the same person that have nothing to do with
    each other. Where, however, the matters which constitute
    the individual offences of the several offenders are upon
    the available evidence so related, whether in time or by
    other factors, that the interests of justice are best
    served by their being tried together, then they can
    properly be the subject of counts in one indictment and
    can, subject always to the discretion of the court, be
    tried together. Such a rule, of course, includes cases
    where there is evidence that several offenders acted in
    concert but is not limited to such cases."

85. Here, while it is true that Altintas is charged with a different offence from that upon which the other accused stand trial, it is an offence in which the "available evidence" is closely related both in time and in other factors to the body of evidence upon which the substantive offence is sought to be proved.

86. I would have thought that it is ordinarily in the interests of an alleged accessory after the fact to have his or her charge dealt with at the same time as the hearing of the substantive offence. If separate trials were to be contemplated, the conviction of the principal offender or offenders is only prima facie evidence of the commission of the offence as to which accessorial liability is sought to be established; see R v Dawson (1961) VR 773. If the alleged accessory sought to offer evidence going to the question whether or not a principal offence had been committed, the accessory would, in the context of separate trials, inevitably have to call much evidence again. If the accessory is tried with the alleged principal offenders, he or she has the opportunity of participating in the presentation of evidence going to the commission of the principal offence, and may by cross-examination or otherwise have an opportunity of playing a part in the defence to the allegations going to the establishment of the principal offence which it would be difficult to achieve in the context of a separate trial.

87. Until its repeal, s.268 of the Criminal Law Consolidation Act provided in part:
    "(1) ...
    (2) An accessory after the fact may be informed against,
    tried and convicted either together, with or without the
    principal felon and whether the principal felon has or has
    not been convicted or is or is not amenable to justice."

88. That section was repealed as from 6 July 1992 by s.8 of the Statutes Repeal and Amendment (Public Offences) Act 1992 No 35. The subject matter is now dealt with by s.241 which omits any reference to the manner in which an alleged accessory may be tried. Furthermore, that section now provides that the accessory is not guilty of an offence unless it is established that the principal offender committed an offence that the accessory "knew or believed the principal offender to have committed" or "some other offence committed in the same or partly in the same circumstances" (see s.251(2)(a)(i) and (ii)). An offence on the part of the alleged accessory may also be established even if the principal offender is found not guilty of the offence charged, but the Court is satisfied that another person was guilty of the offence (see s.241(5) and Williams (1932) 32 SR(NSW) 504).

89. Notwithstanding the changes in the statutory provisions, it seems to me that at common law the principles which find expression in the passage which I have cited above from Assim still apply. In particular, it is within the discretion of the Court to permit the joint trial of an accessory, that is, a trial together with the trial of the alleged principal offender or offenders.

90. It is true that it is alleged that Altintas is an accessory after the fact to Smith and not to Turner. But because of the ruling which I have made as to the admissibility of evidence against Turner and Smith, it does not seem that anything turns upon that consideration.

91. As to the second ground put forward on behalf of Altintas, namely, that the case against her is weak "and she will suffer prejudice by being trial jointly with Turner", it is true that, viewed objectively, the evidence foreshadowed so far as against her does not suggest that the case is strong. Sometimes that is a consideration which has been taken into account in ordering a separation of trials. But in this case, I am unpersuaded that proper directions to the jury will not enable them to consider the case against Altintas on its merits.

92. It seems to me that there are strong reasons of policy and convenience in trying the charge against an alleged accessory with the hearing of the charge against the alleged principal offender.

93. I could not see in all the circumstances of this case that a proper basis had been made out to disengage the trial of the charge against Altintas from that against the other accused.

94. For those reasons, her application was also dismissed.